Put Out into the Deep

The Constitutional Rights of Our Parishioners to Exercise Their Faith

My dear brothers and sisters in the Lord,

In my high school civics class, I never believed that what I learned then would be put to the test during my own lifetime. The First Amendment of the Constitution of the United States of America says everyone in the United States has the right to practice his or her own religion, or no religion at all. Clearly stated, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” 

During the latest period of restrictions due to the Coronavirus pandemic, we here in the Diocese of Brooklyn, in the “red” zones, now limited to Brooklyn but previously also in Queens, have endured a real curtailment of our right to worship, that is overreaching. 

To be clear, the health and safety of all people is paramount to the Diocese. It must be understood in context how careful the Diocese in Brooklyn and Queens has been to make sure that our churches are safe places for worship during the pandemic. 

When it was clear that no one truly understood this virus and that churches could be a place of contagion, we voluntarily closed down one week before the order came from the State of New York. Here in the Diocese, we waited an additional ten days after the order was given by the State that we were free to open our doors again. This was done so that we could make sure that we truly were ready to deal with all of the issues involved so that the faithful would be safe. 

To that end, I established a committee, headed by Commissioner Joseph Esposito, formerly of the NYC Office of Emergency Management and former Chief of Department in the New York City Police Department. He guided the committee, composed of a panel of experienced professionals, on our re-opening plans and the subsequent safe re-opening of our churches. I take this time to publicly thank Commissioner Esposito and all committee members for the time and special care they gave to the Diocese in guiding us to the safe re-opening of our churches and our schools. It was never the intention of the Diocese to defy the laws of the State of New York. 

As of this writing, there are currently six churches in the “red” zone, some of which are literally across the street from the “yellow” zones where 50 percent occupancy is allowed, versus the maximum of 10 persons or 25 percent, whichever is the lesser number. In fact, our churches in the “red” zone can have one priest and only nine parishioners. 

Most of the churches have remained closed since the question arises of “how do we decide which nine people will be allowed to come to Mass?” Another key factor that the government regulations do not take into account is the massive size of most of our churches, where social-distancing can take place, and the fact that masks are required as well as a whole series of safety protocols that are working.

During this time of the pandemic, we have made sure that our churches have reached out to the faithful by live-streaming Masses. Our own NET-TV station at one point was transmitting eight different language Masses daily and on Sunday. The diocese made every effort to keep the faithful of Brooklyn and Queens close to the celebration of the liturgy. Only live Masses were televised so that parishioners viewing a Mass could benefit from the spiritual communion they make in union with the actual celebration of the Eucharist that they were witnessing. 

Our churches successfully reopened in July. In October, we were forced to close churches in the designated zones set by the State of New York.  Understanding that the state government’s role is to keep its citizens safe from contagion, we have concurred that this must be accomplished in a reasonable manner. To that end, we have petitioned two courts in two separate hearings. Both requests were denied as to an emergency injunction to open our churches with the same restrictions that are in the “red” zone that are in the “yellow” zone. 

The “orange” zone now has been eliminated. However, it must be noted the federal district court commended the diocese for all the safety protocols and that our churches are a true model. 

The reason for this litigation is to protect the Constitutional rights of our parishioners to freely exercise their faith. Our nation was founded on the notion of religious freedom, religion is essential; unfortunately, the State does not consider religion to be essential. 

Treating religion as non-essential is a situation that is unfortunately not unique to just New York. For example, in California, all churches are limited to 100 individuals. In our case before the court, we said that in many of our churches, 500, 600, and even 1,000 people could comfortably be seated during normal times. Allowing 25 percent of these numbers will still give more than adequate room for necessary social distancing to keep the faithful safe.  

Besides social distancing, the precautions we have taken are the mandatory wearing of masks and proper precautions between each service. All of these precautions we have taken since the July re-opening are second to none when it comes to other places of public assembly in the City of New York. 

The core issue for the State is that churches are considered “non-essential” services, just as movie theatres, bowling alleys, and other such services where larger gatherings of people come together. But non-essential services, however, are not protected by the Constitution of the United States which says, “the right to practice his or her own religion, or no religion at all.”  

We, by no means, have asked anyone to put themselves in danger of contracting the virus by coming to Mass. The dispensation from attending Sunday Mass is still in effect until the end of the pandemic. We have made it clear, however, that we need to have access to our churches for those who are healthy and wish to come to the celebration of the Eucharist. 

It has been our contention that Catholics in Brooklyn and Queens have been penalized by a broad-brush approach when we are not the cause of the spreading of the contagion. No incident of the spreading of this contagion has been traced to our weekday or Sunday gatherings for Mass. We will continue to petition the courts and our elected officials as we strive to preserve the fundamental rights that are a treasured part of our heritage in our Nation.

I would never have imagined in high school that the necessity of putting out into the deep would amount to bringing a petition to the Federal Courts in order to preserve our right to worship. The Diocese has shown that it can manage the risk of the coronavirus in our churches, and we should be allowed the free exercise of our faith within the prescribed limits for essential services. The right to practice one’s faith is essential to our nation, and this right must be protected.

The government has a right and duty to protect the health of citizens, but this duty cannot be so broad that the right to freely exercise one’s faith is extinguished.  The issue of religious freedom is one that must be on our radar because, in the future, we might see further attempts to redefine the meaning of religious freedom and relegate us not just to be inside of our churches, but even dictating the number of people who are allowed to enter our churches.

Follow Bishop DiMarzio on Twitter @BpDiMarzio


3 thoughts on “The Constitutional Rights of Our Parishioners to Exercise Their Faith

  1. Bravo bishop dimarzio please pursue appeals to us supreme court. given the current makeup of the court you will be successful Dont let that bully in albany call the shots as it has been abundantly clear since the inception of this virus that he doesnt have a clue as to what he is doing other than promoting himself and his silly book touting leadership when in fact he failed abysmally in leadership all i need say on that count is look what happened to seniors in the nursing homes thanks to the man in albany. clueless yet a pompous braggart. a bag of wind –nothing more my dad used to say empty barrels make the most noise. he sure does.

  2. Kudos to Monsenor DiMarzio for filing this legal action. I’m not sure I’m ready to conclude as he does that the state’s COVID 19 restrictions violate the Constitution’s prohibitions against the free exercise of religion.

    I think the majority opinion in Oregon v. Smith (1990) written by Antonin Scalia identifies some of the legal questions to be resolved. Here is part of what he wrote:

    Writing for the majority, Scalia observed that the Court has never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”

    He cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.

    A case like this invites debate, reflection and critical reevaluation. That’s a good thing in a democracy.